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Can You Think Up Two Cool Words? Congratulations,You're Trademarked

The New York Yankees are offically Baseball's Evil Empire (Photo credit: Keith Allison)

Say something. Anything. Say it on television, or put it out on Twitter. Get a few people to notice.

Bingo – you’re a brand. And whatever you said, even if it’s kind of generic and not particularly original, is protected. All you need to do is file the papers with the U.S. Patent and Trademark Office. The phrase now belongs to you, at least as far as making t-shirts or promoting your bar goes.

In 2011, Jets’ linebacker Bart Scott, in the aftermath of a playoff victory at New England told ESPN he “Can’t Wait” to play the Steelers in the AFC title game the following week. The phrase caught on, enough so that Scott applied for and received trademark protection for it (not that he profited much, as the Jets lost to Pittsburgh, missed out on the Super Bowl, and haven’t been the same since. Still, Scott was in prime position to benefit if the team had done better).

There have been others: former Giants lineman Michael Strahan trademarked “Stomp You Out.” More recently, New Orleans Hornets top draft pick Anthony Davis, whose eyebrows effectively fuse together as one, trademarked “Fear the Brow.”

And just the other day, a panel of judges decided that the New York Yankees are, for all intents and purposes, “Baseball’s Evil Empire.” Now, in this case, the Yankees didn’t attach the phrase to themselves. Coined by Ronald Reagan to describe the Soviet Union 30 years ago, it was thrown at the Yankees in 2002 by Boston Red Sox president Larry Lucchino, after his club lost out to the Bombers in a bidding war for Cuban pitcher Jose Contreras (a good loss for the Red Sox, as it turned out).

A company, Evil Enterprises, had been seeking trademark protection for the phrase themselves, hoping to slap it on t-shirts and other items. Maybe that was the mistake- if the company had gone about its business without seeking a trademark, maybe Major League Baseball doesn’t feel compelled to step in on behalf of the Yankees.

Trademarking slogans is nothing new. But in the age of technology and viral videos they seem to be coming at a record pace. Are trademarks becoming too easy to get? A lawyer for NFL wide receiver Chad Ochocinco, who once filed for trademark protection for a logo with his initials, told the New York Times a couple of years ago that there needs to be “some degree of uniqueness” to a slogan if it’s to successfully capture trademark status. At first blush, you’d think the case of the Yankees, and probably Davis’s “Fear the Brow” moniker, would qualify. But “Can’t Wait” or “Stomp You Out?” At what point are we all silenced to even the most mundane phrases, because someone else allegedly “owns” it.

Evidently, the answer is – for the foreseeable future. “’First in time’ is what matters, not so much originality,” says Patrick Bright, an attorney and trademark expert in Glendale, Calif. In other words, trademarking a slogan for commercial purposes will likely always be legally easy for those who seek to do it. Two years later, that’s a more lax standard than “some degree of uniqueness.”

Of course it may turn out that nabbing exclusive rights to a phrase will lose its luster, now that it’s done so often. And in the fast world of the internet, what’s popular today can quickly be forgotten tomorrow (ask Scott). Pretty soon, athletes – and others – may decide it’s not even worth the time and $300 fee to file. We can only hope.

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